Judges will rule on appeal concerning positive obligations of men charged with rape

Irish Times

by Mary Carolan

The Director of Public Prosections wants the Supreme Court to clarify the law when men accused of rape claim the woman consented to sex.

The seven judge court will rule later on an important appeal concerning what positive obligations apply to men charged with rape who plead they believed there was consent to sex.

The DPP wants the court to consider whether, in particular cases of alleged rape, an accused is obliged, before any sex, to ascertain there was actual capacity to consent.

Tom O’Malley BL, for the DPP, said consent is “the minimum required of any respectful interaction between human beings” and there has been a “massive change in attitudes” to rape.

It would be helpful for the Supreme Court to clarify there must be a genuine basis for consent in circumstances including where some hold views a woman may be so “out of it” consent is irrelevant, he said.

The court’s consideration should be shaped by “fundamental” values, including rights to sexual autonomy, bodily integrity and human dignity, and also address the meaning of consent.

The appeal, before four male and three female judges, concerns a man jailed for 12 years after being convicted by a majority jury verdict of raping his mother, aged in her sixties.

He denied rape and pleaded he honestly believed she consented to sex, a claim she rejected.

After the Court of Appeal dismissed his appeal against conviction, he sought a further appeal to the Supreme Court.

It agreed to hear an appeal after stating, given the importance of the protection of women from sexual violence, the precise definition of the mental element of rape is “a matter of general public importance”. The presentation of that definition to a jury was also important, it said

Consent, as a matter of fact, “may carry positive obligations for a man to ascertain where the issue of consent by the woman to sexual intercourse stands”, it added.

It certified two questions for determination in the appeal, heard and concluded on Monday. The Chief Justice, Ms Justice Susan Denham, said the court was reserving judgment.

The first question is whether the mental element of rape can excuse a situation where, on unreasonable and irrational grounds, a man genuinely believed a woman consented to sex when in fact she had not.

The second asks whether, within the legal definition of rape, there is a legal requirement for a man to ascertain, prior to sex, the woman is (a) capable of consenting and (b) she has consented. ...